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83
milk, was found by them in a very dirty state. Expert evidence
was given by the Medical Officer of Health supported by the Medical
Officer of Health of Lambeth to the effect that, if the milk were in
the condition in which it was reported by the Inspectors to be, it
ought to have been seized as being unfit for human food.
The line of defence adopted is worthy of being put on record.
The defendants' Solicitors contended that, even assuming that
the milk was exposed to contamination, which they did not
admit, a prosecution could not lie against them under regulation
32 because that regulation was ultra vires in that it did not
prescribe any precautions to be taken for preserving the purity of
the milk and protecting it against infection or contamination as
under the Order of 1885, the local authority were bound to do in
order to make their regulation effective.
On behalf of the Borough Council it was contended that the
regulation sufficiently defined the precautions to be taken in a
general way, and that they were entitled to call upon the defendants
under that regulation to take all reasonable precautions.
The Magistrate in giving his decision said " The powers of the
Borough Council to make these regulations are limited. They are
to make regulations prescribing precautions to be taken. Under
regulations 30 und 31 they have done this. They have laid down
in terms the precautions to be taken respecting the places where,
and the vessels in which milk is to be kept for sale and then in
regulation 32 they have laid down a general rule covering or intended
to cover all other conceivable cases connected with the
storing of milk which might not be covered by the preceding regulations.
Obviously such a regulation as this might be liable to
abuse. A dealer in milk might reasonably say " You had the
power to prescribe—that is to lay down directions which I should
be bound to follow as to the places where and the manner in which
I should keep the milk which I intended to offer for sale. You
might for instance have said that when in the open air all receptacles
in which the milk is kept shall be properly covered so as to
prevent contamination by any foreign bodies—but you have not
done so—consequently I can never be safe from a prosecution although
I may take what I considered sufficient precautions, it is
always open to you to say that these precautions are insufficient
unless and until you have done what the powers given you enable
you to do, namely to prescribe what precautions I am required to
take."
"For these reasons I come reluctantly to the conclusion that
this summons must be dismissed. I say reluctantly because from
the evidence before me I cannot help feeling that until this by-law